Court File and Parties

Court File No.: CR-17-70000011-000 Date: 2017-07-14 Superior Court of Justice - Ontario

Re: R. v. O.M.

Before: Madam Justice Faye McWatt

Counsel: Jennifer Armstrong, for the Respondent Crown Jonathan M. Pyzer, for the Applicant Mr. O.M.

Heard: July 11, 2017

Severance Motion - Endorsement

Introduction

[1] The Applicant, O.M., stands charged that between February 28, 2009 and December 31, 2009, he committed the offences of criminal harassment, assault x2, overcome resistance to an offence/attempt to choke, and sexual assault against Ms. D.K..

[2] Mr. O.M. stands further charged that between May 6, 2014, and July 30, 2014, he committed the offences of assault x3, uttering threats/death or bodily harm x3, forcible confinement x2, sexual assault x2, assault with a weapon/imitation weapon, and robbery against Ms. J.M..

[3] All counts are on a single Indictment.

[4] The Applicant seeks to sever the counts on the joint Indictment. Specifically, the Applicant seeks an Order severing the counts on the Indictment relating to Ms. D.K. (counts 1-5) from the counts on the Indictment relating to Ms. J.M. (counts 6-19).

Background

[5] In November 2015, the Applicant was charged with a number of offences of violence and criminal harassment relating to a woman he had been romantically involved with. During the course of the police investigation, police came across occurrence reports and prior synopses that caused them to believe that the Applicant may have committed similar offences against other women. A press release was issued and attempts were made to reach out to the complainants in a prior report (Ms. J.M.). This report had been made on July 22, 2014, and contained allegations of sexual assault. At that time, the Complainant did not attend the police station to provide a formal statement so charges were not pursued.

[6] Officers began attempts to locate Ms. J.M. again in late November of 2015 following the Applicant’s arrest. They were successful and she agreed to provide a videotaped statement on December 7, 2015. As a result of that statement, further charges were laid against the Applicant.

[7] Later in December, another Complainant, Ms. D.K., contacted a police officer she knew from an unrelated police matter to report that she had learned of the Applicant’s arrest from the news and that she had experienced similar abuse when they had been involved in 2008. She reported offences that he had committed against her, but not the sexual violence that occurred during the relationship. Ms. D.K. sought guidance from the officer about whether her evidence would be of any assistance. She testified at the Preliminary Hearing that she was “back and forth” about whether to provide a statement because, while she felt heartbroken at the thought the Applicant had moved on from her to assaulting other women, she was also frightened of him and hesitant about participating in the proceedings. She ultimately provided a videotaped statement to police setting out some of the charges on the Indictment.

Allegations with Respect to Ms. D.K.

[8] It’s alleged that the Applicant and Ms. D.K. met in 2008 and began dating in early 2009. They never resided together nor do they have any children together.

[9] Ms. D.K. alleges two incidents of physical violence by the Applicant during the course of the relationship in 2009.

[10] The first incident is alleged to have occurred during the spring of 2009. It is alleged that the Applicant and Ms. D.K. engaged in a verbal argument at the rear of the Applicant’s residence. This argument resulted in the Applicant striking Ms. D.K. once in the left eye with a closed fist which resulted in bruising to her left eye.

[11] The second incident is also alleged to have taken place in 2009. Ms. D.K. alleges that she attended at the Applicant’s residence. While in the bedroom, the Applicant asked Ms. D.K. to have sexual intercourse with him. She refused. It is alleged that the Applicant then attempted to coerce Ms. D.K. to have sex and then placed both of his hands around her neck, squeezing until she lost consciousness. When Ms. D.K. regained consciousness, the Applicant was still holding her throat and engaging in sexual intercourse with her. As a result, Ms. D.K. claims to have sustained finger-like bruising to her neck and a sore throat.

[12] The two terminated their relationship in 2009. Following the end of the relationship Ms. D.K. contacted the Toronto Police Service on numerous occasions to make complaints against the Applicant who would obsessively call or text her.

[13] Between 2010 and 2014, a period of time which post-dates the current allegations before the Court, Ms. D.K. had numerous contacts with the police in relation to reporting numerous allegations of criminal conduct by the Applicant against her including assaults, robbery and unwanted contact.

[14] On July 10, 2010, shortly after the alleged offending time-period, she provided a KGB videotaped statement to the police in relation to allegations of robbery and criminal harassment. Despite being specifically asked at that time whether there were any other incidents of aggression by the Applicant during her relationship, she did not mention any of the allegations from 2009 which are now before the Court.

[15] Ms. D.K. first reported the current allegations before the Court in December 2015. She came forward at that time as a result of a Toronto Police Service Press Release she had seen indicating that the Applicant was wanted for a number of specific offences. At the Discovery, she acknowledged doing her own research and reading a number of articles about the allegations against the Applicant prior to coming forward with the details of these allegations.

[16] The Applicant maintains his innocence with respect to the allegations against him. It is his position that these incidents simply did not occur. Ms. D.K.’s credibility and reliability will be central issues at the trial.

Allegations with Respect to Ms. J.M.

[17] It is alleged that the Applicant and Ms. J.M. met sometime in 2014 and dated briefly. They never resided together nor do they have any children together.

[18] Ms. J.M. alleges three incidents of physical violence by the Applicant on her during the course of the relationship in 2014.

[19] The first incident was on or about May 6, 2014 when Mr. O.M. and Ms. J.M. rented a hotel room together at the Idlewood Inn on Kingston Road in Toronto. While at the Inn, the Applicant took the Complainant’s cell phone from her and began punching her about the head. The Applicant then blocked the Complainant from leaving the room and dragged her to the bathroom, punching her along the way. Once in the bathroom, the Applicant further kicked and punched the Complainant. Once things calmed down and the Complainant collected herself, the Applicant asked the Complainant to fellate him. The Complainant placed her mouth on the Applicant’s penis and complied with his directions. The Applicant then performed oral sex on the Complainant and had vaginal intercourse with her. Mr. O.M. threatened to kill the Complainant if she told anyone about what had happened. After this incident, the Applicant continued to call and text the Complainant.

[20] The second incident occurred in July, 2014. It is alleged that on this date the Complainant attended at the Applicant’s home. The Complainant was sitting on the Applicant’s bed when he began to go through her phone and question her about a text to a male friend. He became irate and punched the Complainant in the face and blocked the only exit to the room. The Applicant then lay on the bed and pulled the Complainant towards him and forced her to fellate him. He then performed oral sex on the Complainant and had vaginal intercourse with her. Mr. O.M. is accused of then going through the Complainant’s purse and taking $600.00.

[21] The third, and final, set of allegations occurred a couple of days after the second incident and also in July 2014. The Applicant contacted the Complainant and begged her to meet with him. He purportedly apologized to her and wanted to return the money he had taken. The Complainant agreed to meet with Mr. O.M. for the return of the money. Indeed, he did return her money he had previously taken from her purse. The Applicant then followed the Complainant to 80 Carlton Street in Toronto. He confronted the Complainant there and beat her to the point she received significant injuries and bruising to her face and body. The Complainant attended at one of her friend’s apartment in the building. Her injuries were observed and photographs taken of them.

[22] The Applicant maintains his innocence with respect to these allegations. It is the Applicant’s position that these incidents simply did not occur. Ms. J.M.’s credibility and reliability will be central issues at the Applicant’s trial.

The Law

[23] The Criminal Code of Canada provides a Court the authority to sever counts on an indictment where the interests of justice require it. Section 591(3)(a) of the Code states:

591(3) The court may, where it is satisfied that the interests of justice so require, order

(a) That the accused or defendant be tried separately on one or more of the counts;

[24] The burden of proof on a severance application is on the accused to show, on a balance of probabilities, that the interests of justice require severance (R. v. Last, 2009 SCC 45, [2009] 3 SCR 146 at para. 33).

[25] The question faced by the trial judge in deciding whether or not to grant a severance application is whether severance is required in the interests of justice, pursuant to s. 591(3) of the Code. The interests of justice test encompasses the accused right to be tried on the evidence admissible against him as well as society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner. Trial judges have a broad discretion in deciding whether or not to order severance (R. v. Last, 2009 SCC 45, [2009] 3 SCR 146 at paras. 16 and 21).

Disposition

[26] The application is granted for the following reasons:

1. There is no factual nexus between the sets of allegations except that they arose from the same investigation. Although they contain similar crimes, they are separated by 5 years;
2. The Crown concedes that there is no basis for a similar fact application among the counts on the Indictment. There is no legal nexus between the counts;
3. Each count can be understood by the jury separately and there would be nothing inherently inconsistent with a verdict of guilty on one set of allegations and a verdict of not guilty on the other;
4. Mr. O.M. has indicated that he will likely testify in relation to the counts relating to Ms. J.M., but not testify in relation to the counts relating to Ms. D.K.. He also maintains that his defences in relation to each complainant are different. With respect to the counts related to Ms. D.K., the applicant’s defence is “recent fabrication”. With Ms. J.M., the applicant will maintain that the incidents simply did not take place. If the jury finds the applicant is not reliable in his testimony with respect to one set of charges related to one complainant, the jury might presume that he is also not credible with respect to the other set related to the other complainant. Although the evidence in the case is not complicated, there is a risk of cross-pollination with respect to credibility assessments and how the credibility of each complainant, that has no connection to the other, will be bolstered if the two incidents are tried together;
5. There is also the risk of propensity reasoning.

[27] I find that limiting jury instructions may not alleviate the potential prejudice to Mr. O.M. if the two sets of charges were tried together. The interests of justice require severance in this case.

McWatt J. Date: July 14, 2017.